NCJ Number
181055
Journal
Boston College Law Review Volume: 40 Issue: 4 Dated: July 1999 Pages: 937-967
Editor(s)
Jared M. Viders
Date Published
1999
Length
31 pages
Annotation
This article reviews the development of modern domestic violence law, examines the personal and private autonomy rights at stake in domestic violence cases as well as the constitutional decisions and tests that protect these rights, and discusses victim involvement in domestic violence cases.
Abstract
Public perceptions of battered women and their abusive partners began to change significantly in the 1970's. As domestic violence became recognized as a social and public safety issue, the need for legal intervention became apparent, resulting in domestic violence legislation on both State and Federal levels. Stronger arrest policies were implemented, and prosecution practices were reformed. One of the tactics now used to confront domestic violence is the mandatory no-contact order. In most jurisdictions, a no-contact order is issued as a condition of pretrial release or sentencing when a domestic violence arrest has been made. Almost simultaneously with the development of modern domestic violence statutory and common law, the U.S. Supreme Court has actively advanced the personal autonomy and privacy rights of individuals. The victim rights movement has emerged to balance the status of the victim with the constitutionally protected status of the accused. The evidence is not clear on whether these constitutional and legislative developments have reduced the pervasiveness of domestic violence. Further, scholars and practitioners do not agree on the causes of violent behavior and on how best to treat the problem of domestic violence. As domestic violence policies have attempted to remove discretion from the various institutional actors, victim control over the process has been removed. Victims of domestic violence deserve the protection of the criminal justice system without sacrificing their autonomy rights. Although privacy doctrine has led institutional actors to ignore domestic violence as a social concern, public awareness and reform in managing domestic violence cases successfully has dismantled this misapplication of privacy rights. The issuance of a no-contact order separates a family, forcing one member out of the home, and the emotional and financial hardships inherent in such an action should not be ignored. Legislation that mandates no-contact orders by definition prohibits meaningful review of all factors and interests involved in domestic violence cases, including the history of the relationship and the wishes of the victim. 228 footnotes